STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 02-0821PL

)

BARBARA GONZALEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on June 18, 2002.

APPEARANCES

For Petitioner: Reginald D. Dixon

Senior Attorney Department of Health

Bureau of Health Care Practitioner Regulation--Legal

Division of Medical Quality Assurance 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Lawrence R. Metsch

Metsch & Metsch, P.A

1455 Northwest 14th Street Miami, Florida 33125

STATEMENT OF THE ISSUE

The issue is whether Respondent has been convicted of a crime directly related to the practice of nursing, in violation

of Section 464.018(1)(c), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 31, 2000, Petitioner alleged that Respondent, a licensed registered nurse, was found guilty, on March 23, 1999, in the United States District Court, Southern District of Florida, of Conspiracy to Submit False Claims to the United States. The Administrative Complaint alleges that Respondent thus violated Section 464.018(1)(c), Florida Statutes, by being convicted or found guilty, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction that directly relates to the practice of nursing or the ability to practice nursing.

At the hearing, Respondent called the only witness, herself. Petitioner offered into evidence four exhibits: Petitioner Exhibits 1-4. Respondent offered into evidence two exhibits: Respondent Exhibits 1-2. All exhibits were admitted.

The court reporter filed the transcript on August 5, 2002.

The parties filed proposed recommended orders on August 12, 2002.

FINDINGS OF FACT

1. Respondent was born on September 27, 1963, in Havana, Cuba. She is now a United States citizen and is married with three children.

2. Since 1985, Respondent has been a licensed registered nurse, holding license number RN 1643122. She has not previously been disciplined.

3. In 1991, Respondent separated from, and later divorced, her then-husband. She was under considerable financial pressure, caring as a single parent for her children, who were then newborn, 18 months old, and four and one-half years old.

4. Respondent was then employed by St. Johns Home Health Agency, Inc. Respondent served as a nurse who performed admissions and follow-up care. Pressured for money, Respondent agreed to participate in a scheme in which she prepared false notes concerning patient care.

5. Specifically, Respondent would see her patients and appropriately record accurate vital signs once weekly. For her more involved patients, such as diabetics or patients undergoing wound care, Respondent would see them as often as indicated and duly record their vital signs. However, for less involved patients, Respondent would document other visits during the week that did not take place and record fictitious vital signs. Respondent understood that the purpose of this fraudulent activity was to induce the federal government to pay her employer unearned Medicare monies, part of which the employer then paid Respondent.

6. Although no patients were harmed by Respondent's fraud, she continued this practice for over one year and perhaps as long three and one-half years. Some days, Respondent falsified over 20 patient visits.

7. On December 17, 1998, the grand jury returned an indictment against 26 defendants, including Respondent, for Medicare fraud and various related crimes. By Judgment entered March 23, 1999, Respondent pleaded guilty of one count of conspiracy to submit false claims to the United States, in violation of 18 United States Code Section 286.

8. Respondent played a minor role in a massive case of Medicare fraud pursued with diligence and careful, coordinated planning by several entities, not just Respondent's employer. The indictment alleges a total of $25 million in fraudulent Medicare claims arising from unperformed home visits and extensive money laundering and racketeering by the principal perpetrators of this fraud. The prosecutors credit Respondent with early cooperation, even at the grand-jury stage, that was instrumental in obtaining guilty pleas from over 20 defendants. Respondent's testimony at trial was "extremely valuable" against two of the three defendants who went to trial--and received "significant prison terms." As the prosecutors describe the assistance of Respondent and one other defendant, they "did all

   that they could do from the earliest time to help undo the wrongdoing in which they had been involved."

9. The judge initially sentenced Respondent to 18 months' imprisonment and ordered her to pay the United States Department of Health and Human Services $20,000 as partial restitution for the estimated $300,000 of loss attributable to Respondent's fraud. Later, due to Respondent's cooperation and at the request of the prosecutors, the judge reduced the sentence from

   18 months' imprisonment to five years' probation. Respondent has since paid the $20,000 in restitution.

10. The United States Department of Health and Human Services excluded Respondent from Medicare for ten years. After an administrative hearing and pursuant to the recommendations of the Administrative Law Judge, the agency reduced this penalty to five years. At present, Respondent serves as a recovery room nurse at two South Florida cosmetic surgery centers.

11. Respondent expresses heartfelt remorse and displays deep shame for her past criminal behavior. She recognizes that her financial circumstances did not justify her fraudulent acts. However, revocation or a long suspension would cause considerable financial hardship upon Respondent and the three children, who are now 11, 13, and 15 1/2 years old and, as much as is possible for children of these ages, planning on attending college.

12. Petitioner has consistently sought revocation in this case. In past cases, Petitioner has not always sought revocation for licensees convicted of Medicare fraud, but it appears that Petitioner has altered its policy in this regard.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

14. Section 464.018(1)(c) and (f) provides:

    
    

    The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

    
    

    * * *

    
    

    (c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

    
    

    * * *

    
    

    (f) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capacity as a licensed nurse.

15. Section 464.018(2) provides: "The board may enter an order denying licensure or imposing any of the penalties in

    s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1)."

16. Section 456.072(2) provides:

    
    

    When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:

    1. Refusal to certify, or to certify with restrictions, an application for a license.

    2. Suspension or permanent revocation of a license.

    3. Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.

    4. Imposition of an administrative fine not to exceed $10,000 for each count or separate offense. If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of

       $10,000 per count or offense.

    5. Issuance of a reprimand or letter of concern.

       
       

    6. Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

    7. Corrective action.

    8. Imposition of an administrative fine in accordance with s. 381.0261 for violations regarding patient rights.

    9. Refund of fees billed and collected from the patient or a third party on behalf of the patient.

    10. Requirement that the practitioner undergo remedial education.

        
        

        In determining what action is appropriate, the board, or department when there is no board, must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.

        
        

17. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

18. Petitioner has proved that Respondent was convicted of a crime that directly relates to the practice of nursing. Arguably, Medicare fraud alone relates to any health-care profession because obtaining unearned Medicare funds raises health-care costs and eventually may cause otherwise-eligible persons to be denied components of health care. Medicare fraud in the form of falsified patient visits and vitals obviously relates directly to the practice of nursing.

19. Although Petitioner did not charge Respondent with violating Section 464.018(1)(f), Petitioner has proved that Respondent made or filed a false report or record. Although this offense better describes what Respondent actually did, although not the result of her action (i.e., a criminal conviction), Petitioner did not allege this offense, at least in part based on potential problems of proof. Section 464.018(1)(c) normally requires only a certified copy of the indictment and judgment. Section 464.018(1)(f) may require considerably more, as the objective for Petitioner to prove the facts that partly underlie the criminal conviction.

20. As amended last on May 2, 2002, Rule 64B9-8.006(3)(d) provides for a penalty range from a $250 fine to a $500 fine, suspension, and probation for a violation of Section 464.018(1)(c) that is a first offense. Rule 64B9-8.006(3)(n) provides the same penalty range for a violation of Section

    464.018(1)(f) that is a first offense. (Rule 64B9-8.006(3)(g) provides the same penalty range for a fraud conviction, in violation of Section 464.018(1)(d), that is a first offense.) Rule 64B9-8.006(6) provides: "In instances when a licensee or applicant is found guilty of any of the above offenses involving fraud or making a false or fraudulent representation, the Board shall impose a fine of $10,000.00 per count or offense."

21. Respondent participated in extensive fraud for an extended period of time. Although the falsification of patient visits and vital signs may jeopardize the safety of the

    patient--depending, of course, upon the condition of the patient and the frequency of needed visits--Respondent attempted to control this risk by not practicing her fraud on more involved patients. Except for this fact and the fact that Respondent was using the fraudulently obtained money to pay for the expenses of her young children, there is nothing of the redemptive in Respondent's falsehoods and deceptions while she was practicing them.

22. However, once detected, Respondent quickly attempted to rectify the wrongs that she had done, and she did so effectively. Without her timely cooperation, a massive scheme to defraud Medicare, of which she was a small part, would have consumed considerably more of the government's prosecutorial resources and might not have been concluded as successfully as

    it was. Her timely and effective cooperation suggest that her commitment to the fraudulent scheme, of which she was a part, was not considerable.

23. Medicare fraud is a serious crime. However, Petitioner's recourse to revocation in this case deprives it of the ability to differentiate between Respondent and the callous criminals who devise extensive schemes and conspiracies, consume additional government resources by litigating with futility to the bitter end, and express no remorse or shame for their hurtful deceptions. Petitioner has not presented a case for exceeding the penalty guidelines that it has adopted.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Section 464.018(1)(c), Florida Statutes, and reprimanding her license, placing her license on probation for five years, imposing an administrative fine of $10,000, and assessing costs.

DONE AND ENTERED this 15th day of August, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2002.

COPIES FURNISHED:

Ruth R. Stiehl, Ph.D., R.N. Executive Director

Board of Nursing Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Reginald D. Dixon Senior Attorney Department of Health

Bureau of Health Care Practitioner Regulation--Legal

Division of Medical Quality Assurance 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Lawrence R. Metsch Metsch & Metsch, P.A

1455 Northwest 14th Street Miami, Florida 33125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-000821PL

Orders for Case No: 02-000821PL